(영문) 서울행정법원 2018.9.20. 선고 2018구합2056 판결

In electively, the decision of rejection made by the Chairman of the Board of Audit and Inspection or the administrative appeals commission of the Board of Audit and Inspection on November 8, 2017 shall be revoked.

Reasons

1. Details of the disposition;

A. On May 12, 2017, the Plaintiffs filed a civil petition with the purport that welfare points received from the Chairman of the Board of Audit and Inspection of the Republic of Korea as public officials and soldiers (excluding private soldiers) are subject to taxation, and thus, it is unreasonable for the pertinent public officials, etc. to exempt them from taxation due to their failure to report their income.

B. From June 2, 2011, the Chairman of the Board of Audit and Inspection of the Republic of Korea and the Plaintiffs had been notified of the result of treatment by filing a civil petition identical or similar to the same and similar civil petitions more than twice, and thereafter repeatedly submitted the said civil petition without justifiable grounds, the Plaintiffs’ above notification of the result of treatment to the civil petition on May 12, 2017.

C. Since then, the Plaintiffs filed a civil petition with the Chairman of the Board of Audit and Inspection four times from June 5, 2017 to August 28, 2017, once again to the same effect as the above paragraph. The Chairman of the Board of Audit and Inspection of the Defendants concluded the civil petition without notification of any processing result for the same reason as the above paragraph (hereinafter referred to as “each of the instant civil petitions”) on the ground that the aforementioned paragraph was written (including the civil petition as of May 12, 2017 and the civil petition as of August 28, 2017).

D. On October 11, 2017, the Plaintiffs filed a petition with the Defendant Board of Audit and Inspection of the Board of Audit and Inspection for a trial (hereinafter referred to as the “instant trial”) on the grounds that the instant petition is unlawful on the ground that the Defendant’s petition for a trial on November 8, 2017, “The Board of Audit and Inspection of the Board of Audit and Inspection” (hereinafter referred to as the “instant judgment”) is subject to non-subject matters of administrative appeal (hereinafter referred to as “instant petition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 10 (including additional numbers), Eul evidence 1 to 3, Eul evidence 1 to 3, and the purport of the whole pleadings

2. Whether the plaintiffs' lawsuits against the Chairman of the Board of Audit and Inspection are legitimate

With respect to the plaintiffs' petition against the Chairman of the Board of Audit and Inspection for cancellation of the ruling of this case, the Chairman of the Board of Audit and Inspection of the Republic of Korea asserts that the plaintiffs' suit against the Chairman of the Board of Audit and Inspection of the Republic of

In full view of the purport of the entire arguments in the statement of evidence No. 10, the subject who made the instant judgment is recognized as having been an administrative appeals commission of Defendant Board, not the Chairman of the Board of Audit and Inspection. Therefore, the Plaintiffs’ lawsuit against the Chairman of the Board of Audit and Inspection is unlawful as it is against a person who is not qualified as Defendant. All defenses against the Plaintiffs of the Chairman of the Board of Audit and

3. Judgment on the plaintiffs' claim against the defendant Audit and Inspection Administrative Appeals Commission

A. The plaintiffs' assertion

The plaintiffs have the right to request the Chairperson of the Board of Audit and Inspection to evade taxes, corruption, and to inspect corruption under Article 26 of the Constitution, Article 9 of the Petition Act, Articles 2, 4, 5, and 27 of the Civil Petitions Treatment Act, Articles 56 and 59 of the State Public Officials Act, Articles 20, 24, and 33 of the Board of Audit and Inspection Act, and Articles 2, 4, and 53 of the Board of Audit and Inspection Rules (Regulations 304 of the Board of Audit and Inspection Regulations), Articles 7, 39, and 55 of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission (hereinafter referred to as the "Corruption and Civil Rights Commission Rules") and Article 21 of the Rules on the Settlement of Civil Petitions, Etc. (Rules 294 of the Board of Audit and Inspection Rules). The Chairman of the Board of Audit and Inspection of this case has a duty to inspect each civil petition of this case so that the plaintiffs' above rights can be guaranteed.

B. Relevant legislation

The entries in the attached Table-related statutes are as follows.

C. Whether the ruling of this case is legitimate

1) Article 5 subparag. 3 of the Administrative Appeals Act provides for an adjudication on performance of obligations as one of the types of administrative appeals, and defines it as an administrative appeal that requires an administrative agency to take a certain disposition against an illegal or unjust omission, etc. by a party’s request. Article 2 subparag. 2 of the same Act provides that an omission refers to an administrative agency’s failure to take a certain disposition against a party’s request even though there is a legal obligation to take a certain disposition within a reasonable period of time. Thus, in a case where a party’s request does not relate to a disposition, or where a party fails to file an application with an administrative agency for an administrative act against an administrative agency, or where the party does not have any legal or logical right to require the administrative agency to perform such administrative act, the party’s request for adjudication

2) First of all, the Plaintiffs’ act demanding the Chairman of the Board of Audit and Inspection to inspect illegal and unfair acts, such as tax evasion on welfare points received by public officials, etc., is nothing more than urging the Chairman of the Board of Audit and Inspection to make ex officio recommendations, and it cannot be deemed that they applied for the disposition that directly changes the Plaintiffs’ rights and duties.

3) Furthermore, we examine whether the plaintiffs have the right under the laws and regulations or sound reasoning to request the Chairman of the Board of Audit and Inspection to perform duties.

The right to petition under Article 26(1) of the Constitution is a right to state a citizen’s opinion or wish on a matter against a State agency, and the State’s duty to examine a petition under Article 26(2) of the Civil Procedure Act and the agency accepting a petition under Article 9 of the Civil Procedure Act is obligated to notify the petitioner of the result of the review process, but the receiving agency is not obligated to faithfully, fairly, promptly review, and process the petition and notify the petitioner of the result. Therefore, whether to accept the accepted petition and take specific measures shall be free from a State agency and shall not have the right to demand that the petitioner accept the petition and take specific measures (see, e.g., Supreme Court Decision 90Nu1458, May 25, 190).

In addition, Articles 2 subparag. 1, 4, 5(1), and 27 of the Civil Petitions Treatment Act provide for a specific action against an administrative agency as one of the civil petitions, and the person in charge of treating civil petitions is entitled to prompt, fair, kind, and lawful treatment of the civil petition in charge, and the civil petitioner is entitled to prompt, fair, kind, and lawful response to the civil petition filed by him/her, and the notification obligation of the result of handling the civil petition by the head of the administrative agency is provided for the notification obligation of the head of the administrative agency. However, in light of that the Civil Petitions Treatment Act provides for the basic matters concerning the treatment of the civil petition as its legislative purpose and mainly procedural matters, it cannot be deemed that the above provision provides for the civil petition treatment obligation of the person in charge and the civil petitioner's right to respond to the civil petition by the head of the administrative agency, even if the head of the administrative agency provides for the notification obligation of the result of handling the civil petition (see, e.g., Supreme Court Decision 9Nu704, Aug. 24, 1999

Furthermore, Articles 56 and 59 of the State Public Officials Act provide that public officials shall observe Acts and subordinate statutes, perform their duties in good faith, and perform duties in kind and fairly as servants of all citizens. Articles 20, 24, and 33 of the Board of Audit and Inspection Act and Articles 2, 4, and 5 of the Board of Audit and Inspection Regulations (Rules 304 of the Board of Audit and Inspection Regulations) provide that the Board of Audit and Inspection’s duty of inspection and inspection, subject matter of inspection, and subsequent measures. Articles 7, 39, 55, and 59(3) of the Anti-Corruption and Civil Rights Act and Article 25 of the Rules on the Handling of Reports on Act of Corruption and Civil Rights (Rules 294 of the Board of Audit and Inspection Regulations) provide that public officials may request the Board of Audit and Inspection to report civil petitions for grievances or the Local Ombudsman when anyone becomes aware of acts of corruption, and in this case, the Anti-Corruption and Civil Rights Commission shall refer the received matters to the Board of Audit and Inspection Act, apart from the aforementioned duty of inspection and inspection.

4) Ultimately, since the instant petition for adjudication cannot be deemed to be an omission subject to the instant petition for adjudication, the instant petition for adjudication is unlawful and thus the instant judgment dismissing the instant petition for adjudication on the grounds thereof is lawful. The Defendant’s assertion on a different premise is without merit.

4. Conclusion

Therefore, all of the plaintiffs' lawsuits against the Chairman of the Board of Audit and Inspection are dismissed, and the plaintiffs' claims against the Administrative Appeals Commission of the Board of Audit and Inspection are dismissed as it is without merit. It is so decided as per Disposition.

Judges

Justices Park Jae-hoon and decorations

Judges Lee Jin-hoon

Judges Kim Nam-il

Note tin

1) In light of the content of the written application for Defendant’s rectification and the purport of the entire pleadings, it is reasonable to deem that the Plaintiff filed the instant lawsuit against the Chairman of the Board of Audit and Inspection, but filed a motion to add the Defendant’s Administrative Appeals Commission to a selective defendant on July 5, 2018. Accordingly, this court granted permission based on Article 8(2) of the Administrative Litigation Act on August 24, 2018; Articles 70(1) and 68 of the Civil Procedure Act.